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关于诉前离婚协议的法律性质和效力问题,当前司法实务和学界中观点并不统一。文章拟对夫妻双方在起诉离婚前达成的离婚协议效力进行探讨,认为此种协议具备“混合型民事协议”的性质,但是,其中关于财产分割等附随协议附随于“离婚”这一身份上的形成行为,即“离婚”行为不生效,其附随的协议也不生效。
With regard to the legal nature and effectiveness of the pre-trial divorce agreement, the current judicial practice and academic viewpoints are not uniform. The article intends to discuss the validity of the divorce agreement reached by both husband and wife before the prosecution of divorce, and concludes that such agreement has the nature of “mixed civil agreement”, however, the accompanying agreement on property division is attached to “divorce”. An act of formation, that is, “divorce” does not take effect, its accompanying agreement does not take effect.